Follow by Email

Subscribe To

Search This Blog

Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

Followers

Monday, February 1, 2016

A man's home is his castle

A man's home is his castle, and, with a few exceptions, the police cannot cross the threshold to make an arrest without a warrant. That is what the Court of Appeals is telling us in a ruling that vacates a conviction for unlawful possession of a firearm.

The case is United States v. Allen, decided on January 29. This case was argued in December 2013, which means it took the Court of Appeals more than two years to decide this case. The police came to Allen's home because someone finked him out for assault. When the police spoke with Allen, they were outside the house, on the sidewalk. Allen was inside the house, talking to the police. Otherwise, they were face to face. The police told Allen he was under arrest for assault, and could he come with them to the police station? Allen said OK, but he needed to get his shoes from inside the house and speak to his daughter. He allowed the police to follow him into the house. Inside, the police saw drug paraphernalia and other unlawful things and they went and got a search warrant. While executing that warrant, the police found an unlawful gun and drug paraphernalia.

As the Second Circuit (Lynch, Lohier and Sack) remind us, the Fourth Amendment is particular in what the government cannot do. You are free from unreasonable searches in the home. Supreme Court and Second Circuit cases really say that your home is sacrosanct. The Court concludes that "where law enforcement officers have summoned a suspect to the door of his home, and he remains inside the home's confines, they may not effect a warrantless 'across the threshold' arrest in the absent of exigent circumstances." Put another way,

when officers approach the door of a residence, announce their presence, and place the occupant under arrest when he or she, remaining inside the premises, opens the door in response to the police request, the arrest occurs inside the home, and therefore requires a warrant.

This may seem like a technical ruling, but it is rooted in constitutional law, which sometimes lets the guilty go free because the search or arrest went too far. Other Circuits have decided this issue differently, "concluding that law enforcement officers may" make arrests like this "without physically entering the home." "These cases hold that the 'officers may not physically enter the home ...' partially because 'it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home." The Second Circuit charts its own path, in part because of prior Second Circuit precedent and also because the Supreme Court in Payton v. New York and other cases has emphasized that "the Fourth Amendment applies with its greatest force in the home." Moreover, "While it is true that physical intrusion is the 'chief evil' the Fourth Amendment is designed to protect against, we reject the government’s contention that this fact requires that Payton’s warrant requirement be limited to cases in which the arresting officers themselves cross the threshold of the home before effecting an arrest. The protections of the home extend beyond instances of actual trespass."